"The Supreme Court May Have Just Invalidated the Entire Health Care Law!"

Reporting on Politics and Policy.
July 2 2012 1:09 PM

"The Supreme Court May Have Just Invalidated the Entire Health Care Law!"

After the SCOTUS ruled on health care reform, I noticed a number of conservative activists tweeting a question. If the mandate was a tax, and the Senate passed the mandate first -- hey, didn't that violate Article I, Section 7 of the Constitution?

It looked like an easy debunk-job that lived and died on Twitter, but versions of the theory survive online, and one version made it into the libertarian-leaning Ben Swann's Ohio news commentary.

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"What many people may have forgotten," says Swann, "[is that] the House barely passed a version of the health care law. The Senate passed a version of their own. Then, the House version hit a roadblock in the Senate. So, Democrats, because it wasn't a tax bill -- they pulled the Senate version from reconciliation, and they deemed it passed, rather than risking another vote in the House."

I had forgotten that story! The reason: It's bullshit. In November 2009, the House narrowly passed a version of health care reform that included a public option. In December, right before Christmas, the Senate passed a different version of the bill, replacing the public option with a mandate. In January 2010, Scott Brown marched triumphantly over the life-like "Martha Coakley" android that Massachusetts Democrats nominated for an open Senate seat. House Democrats responded -- eventually, agonizingly -- by passing a new bill that mirrored the Senate's mandate-based bill. Now, there was a debate over deeming this passed and moving on. But conservative activists pitched a fit, state attorneys general threatened immediate lawsuits, and Democrats moved on to just passing the damn mandate bill. Next, the Senate used the reconciliation process to pass the bill again. It could do this because the PPACA originated in the House, dealt with revenue, and did not, according to CBO, increase the deficit.

You've got to admire the confidence of people who think they've spotted a Constitutional problem that John Roberts missed.

David Weigel is a Slate political reporter. 

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